Third Circuit Holds Government Contracted Psychologist May Be Subpoenaed To Testify Favorably For Defendant at Sentencing

The Third Circuit Court of Appeals recently decided the case of United States v. Olhovsky, ruling that the sentence imposed by the District Court upon the Defendant was unreasonable. Nicolau Olhovsky was sentenced to six years imprisonment after pleading guilty to charges of possessing child pornography. In 2004, an undercover law enforcement officer was investigating an Internet Relay Chat channel (“IRC”) in which users would trade pornographic images of children. Olhovsky was identified as one of the IRC’s users. In December of 2004, and shortly after Olhovsky’s eighteenth birthday, officers obtained a search warrant for Olhovsky’s home which he shared with his mother and sister. The subsequent search resulted in discovery of a hard drive containing over six hundred images of child pornography. Olhovsky admitted to owning the hard drive and participating in the online trading of child pornographic images.

Nicolau Olhovsky was born with several birth defects, including problems with his heart and a concave chest. His parents divorced when he was seven; he and his sister lived with their mother who became permanently disabled in a car accident shortly after the divorce. Olhovsky was awkward and isolated as a child; bullied and teased at school because of his physical deficiencies. He had a history of depression, suicidal tendencies, and was admitted into a psychiatric facility for treatment. As a result of his many physical and social problems, Olhovsky spent much of his adolescence alone in his room with his computer.

Following his guilty plea to child pornography charges, the Court ordered a psychological evaluation prior to sentencing. In his meetings with the court-appointed psychologist, Olhovsky discussed his adolescence, his current mental state, and explained as to how he became involved with child pornography; he had received an email which he opened, and this email sparked his curiosity. Dr. Silverman, who was contracted with Pretrial Services, wrote a letter to the trial judge expressing his opinion on Olhovsky and emphasizing he had never written a similar letter for any other Defendant. In his letter, Silverman alluded to Olhovsky’s past and that Olhovsky had the maturity level of a fourteen or fifteen year old. He explained that Olhovsky was extremely remorseful for his crimes and that he was slowly progressing towards becoming a mature adult; he is currently in a relationship with an adult female, he has been more active socially, etc. Most importantly, Dr. Silverman opined that Olhovsky’s collection of child pornography was due to his immaturity and curiosity, and that he was a low risk for becoming a pedophile or repeat offender.

Upon examination of this letter, defense counsel attempted to subpoena Dr. Silverman to testify at the sentencing of Olhovsky. The prosecution objected to the subpoena being granted, and the trial court refused to grant the subpoena, holding that Dr. Silverman would be testifying as an expert and such testimony was cumulative in expert reports available to the Court. The Court stated that Dr. Silverman was free to testify voluntarily and could submit additional reports for review; the defense alleges that Pretrial Services threatened to revoke Dr. Silverman’s vendor contract had he volunteered to testify, causing him not only to choose not to, but also to cease communication with the defense. Upon sentencing, the Court examined the mitigating evidence which was available and chose to impose a six year sentence; less than the suggested guidelines but sufficiently lengthy to satisfy the Court’s determination that a “substantial, indeed, draconian” punishment was required.

On appeal, the Third Circuit held that not only did the trial court err in not granting the subpoena for Dr. Silverman to testify as an expert, but that his testimony would actually be factual. Dr. Silverman could have testified to mitigating circumstances which were not contained in his letter to the Court. Further, the Appellate Court held the District Court failed to fully consider the expert reports submitted by the defense as mitigating evidence, imposing sentence to punish the Defendant rather than rehabilitate him. Olhovsky’s sentence was subsequently vacated and the case was remanded for resentencing.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.